Challenge filed in federal court, but gay leaders wary

One of the nation’s best known conservative attorneys, and a U.S. Solicitor General under President George W. Bush, has filed a lawsuit in federal court aimed at defeating Proposition 8.

Theodore Olson has teamed up with well-known Democratic attorney David Boies to file a lawsuit in U.S. District Court in San Francisco on behalf of two same-sex couples.

The lawsuit — which Olson says will almost certainly wind up in the U.S. Supreme Court — argues that California’s Proposition 8, banning same-sex marriage, violates the U.S. Constitution’s guarantees of equal protection and due process of the law.

Olson told Associated Press that he and Boies "wanted to be a symbol of the fact that this not a conservative or a liberal issue."

"We want to send a signal that this is an important constitutional issue," said Olson, "involving equal rights for all Americans."

"It doesn’t get any more conservative and nasty than Ted Olson," posted Aravosis in a May 26 blog. "And now he’s supporting gay marriage. And not just supporting it, but putting his legal muscle behind it."

But it’s not necessarily the strategy gay legal activists had in mind.

Gay legal activists have largely focused their efforts on the states, primarily because marriage laws are, with one glaring exception, matters controlled by each state. The one exception is the Defense of Marriage Act, a federal law passed in 1996 to ban the federal government from giving any recognition to a same-sex marriage and to underscore each state’s right to ignore another state’s same-sex marriage.

Gay & Lesbian Advocates & Defenders recently filed a lawsuit in federal court to challenge the federal recognition aspect of that law. But gay legal groups have not sought any other federal challenges on the marriage issue.

"The best way to maximize the chances of winning a lawsuit is by creating the climate that enables judges to do their job," says Evan Wolfson, head of the national Freedom to Marry group.

Wolfson said marriage rights are more easily won by "building more public support, and doing the same kind of work needed to restore the freedom to marry at the ballot-box in California" and other states.

"These are the most critical tasks now," says Wolfson. "There is no federal end-run around the nitty-gritty work of social change in a democratic society."

Shannon Minter, legal director for the National Center for Lesbian Rights, agreed that the lawsuit could be damaging.

"In our view, the best way to win marriage equality nationally is to continue working state by state, not to bring premature federal challenges that pose a very high risk of setting a negative U.S. Supreme Court precedent," Minter told AP.

The lawsuit filed by Olson and Boies involves two same-sex couples: a gay male couple from Burbank who have been together for eight years and a lesbian couple from Berkeley who have been together for nine years. The lesbian couple has four children.

The lawsuit was filed on Friday, May 22, just days before the California Supreme Court issued its opinion upholding the legitimacy of Proposition 8. The attorneys also asked the court for a preliminary injunction against Proposition 8’s enforcement.

The lawsuit is reportedly being funded by the American Foundation for Equal Rights, a Los Angeles-based organization which has a Facebook page and Twitter account but no Web site.

The Facebook page indicates the organization was founded just this year and is "dedicated to protecting and advancing equal rights for every American through legal, policy, and political advocacy."

A Twitter posting indicates the lawsuit is the group’s "first project."

One of the many ironies in the news is that Olson and Boies were on opposing legal teams in the U.S. Supreme Court clash over the 2000 presidential election results, Bush v. Gore. But Olson’s involvement is the larger surprise.

Olson was solicitor general from 2001-04 under President George W. Bush; and he was private counsel to both Bush and President Ronald Reagan.

Meanwhile, Equality California announced Tuesday, May 26 that it will begin work immediately to put an initiative on the ballot in 2010 to undo Proposition 8.

None of the Proposition 8 news this week prompted a comment from President Obama, even though he spoke at an event Tuesday in Nevada, where Gov. Jim Gibbons on Monday, May 25 vetoed a bill to give gay couples domestic partnership rights.

When asked for comment about Proposition 8, White House Press Secretary Robert Gibbs on Tuesday afternoon told reporters, "I have not talked to the president about it."